Temple American Inn of Court – March 2016 Sexual Misconduct on Campus
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TEMPLE AMERICAN INN OF COURT – MARCH 2016 SEXUAL MISCONDUCT ON CAMPUS SOURCE MATERIALS Cases Bernard v. E. Stroudsburg Univ., Civ. No. 3:09-00525, 2014 WL 1454913 (M.D. Pa. Apr. 14, 2014) .........................................1 Frazer v. Temple Univ., 25 F. Supp. 3d 598 (E.D. Pa. 2014) .........................................................................................33 Doe v. Temple Univ., Civ. No. 14-04729, 2014 WL 4375613 (E.D. Pa. Sept. 3, 2014) ............................................52 Doe v. Univ. of Massachusetts-Amherst, Civ. No. 14-30143, 2015 WL 4306521 (D. Mass. July 14, 2015) ...........................................55 Journals & Law Reviews Veronica J. Finkelstein, Giving Credit Where Credit Isn't Due (Process): The Risks of Overemphasizing Academic Misconduct and Campus Hearings in Character and Fitness Evaluations, 38 J. LEGAL PROF. 25 (2013) ..............................................................................64 Wendy Adele Humphrey, “Let's Talk About Sex”: Legislating and Educating on the Affirmative Consent Standard, 50 U.S.F. L. REV. 35 (2016) ......................................................................82 Julie Novkov, Equality, Process, and Campus Sexual Assault, 75 MD. L. REV. 590 (2016) .....114 Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 DUKE L.J. 487 (2012) ................136 Other Sources Nick Anderson & Scott Clement, College Sexual Assault: 1 in 5 College Women Say They Were Violated, THE WASHINGTON POST (June 12, 2015) .................................................... Web Only Moni Basu, Ghosts of Rape Past: Can a Survivor Find Solace in Return to the Crime Scene?, CNN.com (last updated Nov. 16, 2015) ................................................................................166 Emily Bazelon, Have We Learned Anything from the Columbia Rape Case?, NY TIMES MAGAZINE (May 29, 2015) ....................................................................................................180 Sheila Coronel, Steve Coll & Derek Kravitz, Rolling Stone and UVA: The Columbia University Graduate School of Journalism Report: An Anatomy of a Journalistic Failure, ROLLING STONE (Apr. 5, 2015) .............................................................................................................186 Margaret Hartmann, Everything We Know About the UVA Rape Case [Updated], NYMag.com (July 30, 2015) .......................................................................................................................260 Christine Stoddard, One Year After Rolling Stone’s Disastrous “A Rape On Campus,” Here’s How University Virginia Classrooms Have Changed, BUSTLE (Dec. 18, 2015) ...................272 Jeannie Suk, Shutting Down Conversations About Rape at Harvard Law, THE NEW YORKER (Dec. 11, 2015) ......................................................................................................................283 Temple University, Presidential Committee on Campus Sexual Misconduct: Findings and Recommendations (2014) ......................................................................................................287 ii Bernard v. East Stroudsburg University, Slip Copy (2014) and Jerry Salter, who have been dismissed by this Court because their claims were untimely. (Doc. 48). 2014 WL 1454913 Only the Westlaw citation is currently available. Prior to this, counsel for the plaintiffs and defendants United States District Court, stipulated to the dismissal without prejudice of the M.D. Pennsylvania. members of the Board of Trustees of East Stroudsburg Frantz BERNARD, et al., Plaintiffs University, Defendants Darell T. Covington, Amy v. Schaeffer Welch, Trudi Q. Delinger, Harry F. Lee, Hussain G. Malick, Nancy V. Perretta, L. Patrick Ross, EAST STROUDSBURG David M. Sanko, Robert H. Willever, and Eli Berman. UNIVERSITY, et al., Defendants. (Doc. 7). No. 3:09 CV 00525. | Defendants, East Stroudsburg University, Robert J. Signed April 14, 2014. Dillman, Kenneth Borland and Victoria L. Sanders (collectively hereinafter University Defendants) have moved for summary judgment on the remaining Plaintiffs' claims. (Doc. 93). I. Sanders has also moved MEMORANDUM OPINION for summary judgment on the remaining Plaintiffs' ROBERT D. MARIANI, District Judge. claims. (Doc. 128). The Court will address I. Sanders' motion in a separate opinion. The issues have been fully briefed and the parties have submitted extensive I. PROCEDURAL HISTORY documentary evidence in support of their respective *1 On February 13, 2009, Plaintiffs, Frantz Bernard, positions. Timotheus Homas, Anthony Ross, William Brown, Jerry Salter and Dejean Murray brought this action For the reasons that follow, summary judgment will in the Court of Common Pleas of Monroe County be entered in favor of Defendants, East Stroudsburg alleging violations of Title IX of the Education University, Robert J. Dillman, Kenneth Borland and Amendments Act of 1972, 20 U.S.C. § 1681, et seq., Victoria L. Sanders, with respect to all claims of the as well as violations by Defendants, East Stroudsburg Plaintiffs. University, the East Stroudsburg University Board of Trustees and individual Trustees, Robert J. Dillman, Isaac W, Sanders, Kenneth Borland and Victoria L. II. THE UNDISPUTED FACTS OF RECORD Sanders 1 , pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Further, the Plaintiffs alleged violations In accordance with Local Rule 56.1, the University by Defendants, East Stroudsburg University Trustees, Defendants have submitted a Statement of Material Dillman, Borland and V. Sanders, under 42 U.S.C. § Facts as to which they submit there is no genuine 1986. (Doc. 1). issue for trial. (Doc. 94). Plaintiffs have submitted their response to the University Defendants' Statement of 1 Material Facts (Doc. 109) with the result that many Isaac Sanders and Victoria Sanders are not of the numbered paragraphs of University Defendants' related. Statement of Material Facts have been admitted by An Amended Complaint was filed by the Plaintiffs the plaintiffs. In addition, there are other assertions of on April 7, 2009 (Doc. 4) and a Second Amended fact made by the University Defendants which, though Complaint was filed on July 14, 2009. (Doc. 28). responded to by the plaintiffs with a qualified denial, contain additional statements by Plaintiffs which are This Court previously granted the Motion to Dismiss in substance admissions of the University Defendants' of the Defendants named above with respect to the asserted facts. claims of Plaintiffs William Brown, Dejean Murray © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 1 Bernard v. East Stroudsburg University, Slip Copy (2014) *2 The following facts have been admitted except was terminated for cause on October 22, 2008, specifically noted: effective December 21, 2008. (Doc. 94, ¶ 9 3 ). East Stroudsburg University is a public university of 3 Here again, the plaintiffs, in initially responding higher education and one of the 14 Pennsylvania state to Defendants' Statement of Fact, do so by system of higher education universities. (Doc. 94, ¶ 1). responding, “Denied as stated.” But, the very next sentence in Plaintiffs' Response is: “It is Defendant, Robert J. Dillman (Dillman), was the admitted I. Sanders was terminated for cause on President of East Stroudsburg from 1996 to 2012. October 22, 2008 effective December 21, 2008.” (Doc. 94, ¶ 2). Plaintiffs Bernard, Homas and Ross are former students of ESU. Bernard was enrolled at ESU as Dillman, in the beginning of 2007, began to make an undergraduate from the Fall Semester of 2006 plans to take a sabbatical and left East Stroudsburg through the Fall Semester of 2011 and graduated on University on sabbatical in January, 2008. He December 16, 2011. Plaintiff Homas attended ESU as remained on sabbatical for 18 weeks and returned in an undergraduate student from the Summer Session of May of 2008. (Doc. 94, ¶¶ 3, 4). 2000 to the Summer Session of 2004 and graduated in August, 2004. Homas then attended ESU as a Defendant, Kenneth Borland (Borland), was the graduate student from the Fall Semester of 2004 to Provost and Vice–President for Academic Affairs of the Spring Semester of 2005 and from the Summer East Stroudsburg University in 2007 and 2008 and Session of 2006 to the Fall Semester of 2007. Homas was Acting President while Dillman was on sabbatical. was awarded a Masters Degree from ESU in 2008. (Doc. 94, ¶ 5). Plaintiff Ross attended ESU as an undergraduate from the Fall Semester of 2003 to the Summer Session of In 2007, Defendant, Victoria L Sanders (V.Sanders), 2006 and graduated on May 9, 2008. (Doc. 94, ¶¶ 10– was the Associate Vice–President for Special Projects 13). and also the Assistant to the President for ESU. (Doc. 2 94, ¶ 6 ). The Advancement Office, of which Isaac Sanders was head, raised funds for ESU. (Doc. 94, ¶¶ 7,14). 2 This statement of fact presents an example of the plaintiffs initially denying the asserted fact The East Stroudsburg University Foundation, of which with the statement, “[d]enied as stated,” and then Sanders was the Chief Executive Officer, is a private, admitting the statement in a following sentence: non-profit corporation. (Doc. 94, ¶¶ 7, 15). In 2007 “It is admitted that, in 2007, Victoria Sanders and 2008, the East Stroudsburg University Foundation (“V.Sanders”) was the Director of Diversity was staffed by ESU employees who worked in the and an Associate Vice–President as well as an